15th Annual Northeast Bankruptcy Conference and Consumer Forum

Thursday, July 10

9:00 a.m. – 5:00 p.m.

American Board of Certification Exams

2:00 p.m.

ABI Registration Desk Open

5:00 - 6:00 p.m.

New Member/Ambassador Reception

6:00-8:00 p.m.

Opening Reception

Sponsored by Duane Morris, LLP; FTI Consulting; Great American Group and Wilmington Trust

Friday, July 11

8:00-8:30 a.m.

Sunny Side Up, or Down? Breakfast with the Economists

Sponsored by Cohn, Whitesell & Goldberg, LLP

Stephen B. Darr, Moderator

Mesirow Financial Consulting, LLC; Boston

Hon. H. Louis Kornreich

U.S. Bankruptcy Court (D. Maine); Bangor

Carl Steidtmann

Deloitte; New York

David Wyss

Standard & Poor’s; New York

8:30-10:00 a.m.

Northeast Bankruptcy Conference Concurrent Sessions I

Current Issues in Commercial Leasing

As a result of BAPCPA and evolving case law, commercial landlords and tenants in bankruptcy cases have seen some significant shifts in the law during the past few years. This program will explore an array of issues, including the split of authority as to the limits of a commercial landlord's claim for damages, the impact of letters of credit and third party sources of recovery in bankruptcy, how BAPCPA's limitations on lease assumption have affected retail chapter 11 cases, and the treatment of claims for the rejection of previously assumed leases under Section 503(b)(7).

Michael J. Goldberg, Moderator

Cohn, Whitesell & Goldberg LLP; Boston

Paul W. Carey

Mirick O'Connell DeMallie & Lougee, LLP; Worcester, Mass.

Andy Graiser

DJM Realty LLC; Melville, N.Y.

Hon. Brian K. Tester

U.S. Bankruptcy Court (D. P.R.); San Juan

Appellate Advocacy Skills

Often, bankruptcy cases present more opportunities for appeals than traditional civil litigation. Specialized procedural rules, judicial gloss on the concepts of finality and mootness, and other issues complicate bankruptcy appeals. This panel will discuss when and how to take an appeal, and how to avoid mistakes at the trial court level that can doom, as well as various courts’ interpretations

Kenneth S. Leonetti, Moderator

Foley Hoag LLP; Boston

Thomas Carey

Boston College Law School; Newton, Mass.

Hon. James B. Haines, Jr.

U.S. Bankruptcy Court (D. Maine); Portland

Hon. Thomas M. Hardiman

U.S. Circuit Court of Appeals (3rd Cir); Pittsburgh

You Can’t Treat the Patient without a Diagnosis: Identifying Causes of Business Failure

Some causes of business failure or distress are easily spotted, such as the loss of a key customer or supplier, or the entry of a large judgment. Others are not so easily detected, and often existing management is unable or unwilling to take a hard look at a business to determine where things went wrong. This panel will examine various sources of knowledge about business failure (including quantitative and qualitative studies) and translate that knowledge into practical guidance on how insolvency professionals can help nurse their clients back to health. This will include a discussion of key indicators of a company’s operation and financial well-being, and when and how professionals can convince management to get the help it may need on the road to recovery.

Daniel W. Sklar, Moderator

The Daymark Group LLC; Manchester, N.H.

James C. Ebbert

McShane Group, Inc.; Rockland, Maine

Michael J. Fencer

Jager Smith PC; Boston

James E. Fleet

Phoenix Management Services, Inc.; Boston

Current Issues in Avoidance Actions

Nearly every bankruptcy lawyer has defended a preference or fraudulent transfer action. While defending these actions may be common, it should not be considered routine or simple, particularly in light of changes made by BAPCA. This panel will discuss the statutory amendments to Section 547 and how courts have interpreted the two most common defenses, the “ordinary course” and “unpaid new value” defenses. In addition to discussing legal issues that arise in defending these types of claims, the panel will talk about practical issues that must be considered when preparing a defense (e.g., records retention in the sale of a business or assets). It will also discuss the extent to which preference actions can be sold or transferred under section 363 or a confirmed plan, and tolling agreements as a way to forestall litigation of avoidance actions.

H. Jeffrey Schwartz, Moderator

Dechert LLP; New York

Jonathan R. Doolittle

Verrill Dana LLP; Portland, Maine

James S. Lamontagne

Sheehan, Phinney, Bass + Green; Manchester, N.H.

Hon. Mark W. Vaughn

U.S. Bankruptcy Court (D. N.H.); Manchester

Gaining Support from All of Your Constituencies

Most successful bankruptcy cases requires a delicate balancing of multiple and varied interests. The battles between a debtor and its secured creditors or its trade vendors, for example, are well documented. However, a debtor’s ability to survive frequently requires the support of other types of interested parties—federal, state, or local governments, unions, economic development agencies, and trade or industry groups, to name a few—and a “one-size-fits-all” approach is often unworkable. This panel will address legal and practical issues that must be considered when dealing with these constituencies, including the pros and cons of using local professionals and how to identify and respond to the factors that motivate these parties.

Thomas O. Bean, Moderator

McDermott Will & Emery, LLP; Boston

Hon. Judith K. Fitzgerald

U.S. Bankruptcy Court (W.D. Pa.); Pittsburgh

Martha E.M. Kopacz

Grant Thornton LLP; New York

Daniel J. Callaghan

Devine Millimet & Branch; Manchester, NH

10:00-10:30 a.m.

Coffee Break

Sponsored by Ruberto, Israel & Weiner, PC

10:30 a.m.-12:00 p.m.

Northeast Bankruptcy Conference Concurrent Sessions II

Cross-Border Issues Coming to Your Town

Cross-border transactions and insolvencies are far more common than they were just a few years ago – and these cases are not limited to those involving large conglomerates operating in multiple countries or offshore hedge funds. Increasingly, local businesses depend on foreign customers and suppliers. This panel will discuss why bankruptcy practitioners in any market cannot afford to ignore cross-border issues by analyzing several recent cases.

Daniel M. Glosband, Moderator

Goodwin Procter LLP; Boston

Hon. Gerardo Carlo

U.S. Bankruptcy Court (D. P.R.); San Juan

Brian Cassady

Black Management Advisors; Miami

Tracey C. Sandler

Osler, Hoskin & Harcourt LLP; Toronto

Troubled Portfolio Companies

Some of the good apples are starting to turn bad, and private equity portfolio managers are looking to restructuring professionals for guidance. This program will focus on issues that private equity companies should be attuned to when a portfolio company is in serious financial distress. The panel will address fiduciary duties, dividend recapitalizations, equitable subordination, recharacterization and other key issues.

Christine D. Lynch, Moderator

Goulston & Storrs, PC; Boston

Michael J. Epstein

CRG Partners; Boston

Douglas R. Gooding

Choate, Hall & Stewart LLP; Boston

Stephen Moeller-Sally

Ropes & Gray LLP; Boston

Privileges, Exceptions and Civil and Criminal Liability

Common law privileges are powerful, but not impenetrable. This panel will discuss how and when those privileges may be invaded in connection with the prosecution of bankruptcy crimes, avoidance actions, and other means of addressing debtor or insider misconduct. The panel will also address other common transactions that, if not done properly, can begin to skirt around the fringes of criminal activity proscribed by Title 18, such as exemption planning and joint bidding arrangements.

Robert E. Kaelin, Moderator

Murtha Cullina LLP; Hartford, Conn.

Michael J. Missal

Kirkpatrick & Lockhart Preston Gates Ellis, LLP, Washington, D.C.

William J. Hanlon

Seyfarth Shaw LLP; Boston

M. Stephanie Wickouski

Drinker Biddle & Reath LLP; New York

Administrative Insolvency

This panel will survey and update developments in case law concerning the competing roles and duties of the parties in-interest in chapter 11 cases where the estate’s available unencumbered assets are insufficient to pay administrative claims in full. What roles should the debtor, the estate’s professionals and other parties in interest play in detecting and reporting developing administrative insolvency? How do unliquidated claims (e.g., avoidance actions) affect administrative solvency? What conflicts of interest arise, and what should be done about them? How do carve-out agreements between estate professionals and secured creditors affect their rights and obligations? What remedies are available and appropriate?

Adrienne Walker, Moderator

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC; Boston

John P. Fitzgerald

Office of the U.S. Trustee; Boston

Hon. Robert E. Gerber

U.S. Bankruptcy Court (S.D.N.Y.); New York

Pamela A. Harbeson

Looney & Grossman LLP; Boston

Hot Topics in Claims Purchasing and Trading

Purchasing and trading claims, whether secured or unsecured, individually or in portfolios, is a fixture in our capital markets. Portfolios of secured or undersecured claims are frequently put on the market with little opportunity for potential purchasers to conduct due diligence to discover the “scratches and dents” that might have precluded the portfolio assets from securitization. Liquidating acquired portfolios presents complicated legal and managerial issues. In bankruptcy cases, the law regarding purchasing and selling claims continues to evolve, especially regarding preservation of the estate’s net operating losses. This panel will discuss the issues, strategies and pitfalls facing purchasers and sellers of claims.

Victor G. Milione, Moderator

Nixon Peabody LLP; Boston

Jeanne P. Darcey

Edwards Angell Palmer & Dodge LLP; Boston

Christopher Moon

Merrill Lynch Pierce Fenner & Smith; New York

Hon. Elizabeth S. Stong

U.S. Bankruptcy Court (S.D.N.Y.); Brooklyn

12:30 p.m.

Optional Event: Monomoy Island Tour